There is a little-known provision in the Safe Drinking Water Act of 1974 (SDWA) called an “Aquifer Exemption” that allows oil, gas and mining industries to legally impact groundwater – including some aquifers set aside for drinking water. While these industries have purported to install wells and perform activities with no leakage and permanent protection, in truth, nothing is ever permanent. Seals and casings can and will fail over time and begin impacting some of the more pristine aquifers the wells already penetrate. How did this risky loophole get placed into the SDWA?? A quick look at history may be our guide.

In 1974 America was going through an energy crisis. The OPEC oil nations sanctioned an oil embargo which stopped the US in her tracks. People “frequently faced around-the-block lines” at gas stations when filling-up.1 In the early 70’s, gas guzzling V-8’s and V-6’s were the standard American-made cars.

During the same time period, the country was suffering from self-inflicted environmental degradation. Rachel Carson’s book “Silent Spring”, published in 1962, brought the dangers of prolific pesticide use to light and initiated a grassroots movement to save the environment. By the early 1970’s, several legislative Acts focusing on protecting the environment were created. One of these was the Safe Drinking Water Act (SDWA) of 1974.

The goal of the SDWA was to “ensure the purity of the water we consume.”2 However in light of the energy crisis, “Congress added language to the Act mandating the EPA not “interfere with or impede” oil and gas production unless it is “absolutely essential” in order to protect underground sources of drinking water.”3

To accommodate the Congressional mandate, the EPA developed a set of regulations for Underground Injection Control (UIC) in 1980. The UIC regulations included provisions for an “Aquifer Exemption” program which “allows water that would otherwise be defined as a source of drinking water to be exempted from the prohibition on injection.”4 Aquifer Exemptions were deemed necessary for the oil and gas industry to continue exploration.5 For every barrel of oil produced, 15 barrels of oil wastewater are generated and the easiest way to dispose of it is by underground injection.6

The original goal of the Aquifer Exemption program was to identify aquifers or portions of aquifers that are exempt from the definition of an Underground Source of Drinking Water (USDW); develop rules for EPA review and approval, and describe delineation procedures for exempted aquifers.7 However, what has resulted over the last 36 years is a mish-mash of state Aquifer Exemption programs, with limited Federal oversight, allowing the oil and gas industry as well as the uranium mining industry to freely pollute drinking water aquifers.

A 2012 ProPublica investigation found “Federal officials have given energy and mining companies’ permission to pollute aquifers in more than 1,500 places across the country, releasing toxic material into underground reservoirs that help supply more than half of the nation’s drinking water.”8 Their investigation cited worrisome examples in Wyoming, California, Texas, and Denver.

The travesty behind some of these examples is that Aquifer Exemptions are being allowed in areas where underground aquifers are at a premium. For example, some drought-stricken communities in Texas are so desperate for water they are looking to treat brackish water to make it potable and the cities of San Antonio and El Paso are considering building desalinization plants to supply drinking water. At the same time, environmental officials have “have granted more than 50 exemptions for waste disposal and uranium mining” in Texas.9 A similar situation has played out in California. Areas with the greatest need for groundwater are the same ones where underground injections of oil wastewater are being allowed.10

The misuse of the Aquifer Exemption program has been repeatedly brought to light in recent years. The issue became so controversial that the General Accounting Office (GAO) was tasked to do a report for Congress. The GAO report found

1) EPA “safeguards do not address emerging underground injection risks, such as seismic activity and overly high pressure in geologic formations leading to surface outbreaks of fluids” and therefore may not “fully protect underground drinking water”11;

2) “EPA is not consistently conducting two key oversight and enforcement activities”12;

3) “EPA does not consistently conduct annual on-site state program evaluations”;

4) the data EPA collects is “not reliable”, meaning complete or comparable on a national basis13 and probably most frightening

5) the EPA has not incorporated state requirements and changes into federal regulations and “may not be able to enforce all state program requirements”14

In other words, the EPA would have a hard time preventing individual states from doing what they are currently doing.

Even more telling are the sheer numbers of class II underground injection wells in some states. As of 2012, Texas had 52,977 class II wells, California had 49,783, Kansas had 16,965, Oklahoma had 11,134 and there are thousands in many other states. While only a small number of these wells have Aquifer Exemptions, the primary concern for any injection well over the long term is leakage and cross-contamination of aquifers. In spite of what well-drillers might say, no well cap, casing or seal is permanent. Time always gets its way and when it does, we better be ready.